Ferrucci & Kovak (No 2)
[2024] FedCFamC1F 343
•20 May 2024
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 1)
Ferrucci & Kovak (No 2) [2024] FedCFamC1F 343
File number(s): SYC 4141 of 2018 Judgment of: SMITH J Date of judgment: 20 May 2024 Catchwords: FAMILY LAW – PROPERTY – Final Consent Orders – where matter listed for final defended hearing on property and parenting – where parties reached terms of property settlement – small pool – both parties legally represented - where consent orders are considered just and equitable. Division: Division 1 First Instance Number of paragraphs: 13 Date of hearing: 20 May 2024 Place: Parramatta Counsel for the Applicant: Mr Katsinas Solicitor for the Applicant: Jordan Djundja Lawyers Counsel for the Respondent: Mr Cairns Solicitor for the Respondent: Hutchison Lawyers ORDERS
SYC 4141 of 2018 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 1)
BETWEEN: MR KOVAK
Applicant
AND: MS FERRUCCI
Respondent
ORDER MADE BY:
SMITH J
DATE OF ORDER:
20 MAY 2024
BY CONSENT AND ON A FINAL BASIS THE COURT ORDERS THAT:
1.Pursuant to Rule 10.04 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth), Final Property Orders be made in accordance with the document attached hereto.
THE COURT NOTES THAT:
A.The parenting aspect of these proceedings otherwise remains listed for Final Hearing.
B.The Trustee of Superannuation Fund 1 has not been granted procedural fairness.
C.The Trustee may advise the parties, and Court, if any aspect of the Orders are unsatisfactory to them.
D.In that case, as agreed by the parties, the Court will amend the Consent Orders on a machinery amendment basis to give effect to the intent of the agreement in a manner which is satisfactory to the Trustee.
Exhibit “1”
FAMILY LAW ACT 1975
IN THE FEDERAL CIRCUIT
COURT OF AUSTRALIA FILE No. SYC 4141 / 2018
BETWEEN MR KOVAK
(Applicant-Husband)
AND
MS FERRUCCI
(Respondent-Wife)
TERMS OF SETTLEMENT
BY CONSENT:
1.This order is made by way of alteration of property interests pursuant to Section 79:
PROPERTY
1.Pursuant to section 90XT (1)(a), whenever a splitable payment becomes payable in respect of the interest by the Husband in Superannuation Fund 1, the Respondent Wife be entitled to be paid an amount equal to 50% (fifty percent) of the Husband’s interest calculated in accordance with Part 6 of the Family Law (Superannuation) Regulations 2001 and there be a corresponding reduction in the entitlement of the Husband would have had but for these Orders.
2.The Trustee of Superannuation Fund 1 do all acts and sign any and all documents and instruments as may be necessary to;
(a)Calculate the entitlement created by Order 1 in accordance with the requirements of the Family Law Act 1975 (Cth) an the Family Law (Superannuation) Regulations 2001; and
(b)Pay the entitlement to the Respondent Wife whenever the Trustee of Superannuation Fund 1 makes a splitable payment out of the Husband’s interest in Superannuation Fund 1
3.Orders 1 and 2 are binding upon Superannuation Fund 1 and have effect from the operative time. The operative time is four (4) days after the date of service of a sealed copy of these Orders upon the Trustee of Superannuation Fund 1. The party receiving the entitlement created by these Orders is responsible for causing a sealed copy of these Orders to be served upon the Trustee of Superannuation Fund 1.
PROCEEDS OF SALE OF THE FORMER MATRIMONIAL HOME
4.Order that the balance of the proceeds of sale of the former matrimonial home currently held in a joint account of the former husband and wife, being a Commonwealth Bank of Australia account, BSB … Account number …77, be distributed as follows;
(a)A sum of $50,000.00 (fifty thousand) to the Respondent Wife;
(b)Balance to the Applicant Husband.
5.Within 30 days from the date of these Orders, each of the parties do all acts and things and sign any and all documents as may be necessary to cause all of the funds in their joint account with the Commonwealth Bank of Australia, being account BSB … Account number …77, to be distributed in accordance with Order 4 above and closed.
6.Except as otherwise provided in these Orders;
(a)each of the parties retain, to the exclusion of the other, all interests in property held in their name, possession or control.
(b)Each party retain to the exclusion of the other, all liabilities held in their respective names or associated with any asset they are to retain or are entitled pursuant to these Orders, for which they shall indemnify the other and keep indemnified
Dated 21 May 2024
Note: The form of the order is subject to the entry in the Court’s records.
Note: This copy of the Court’s Reasons for judgment may be subject to review to remedy minor typographical or grammatical errors (r 10.14(b) Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 10.13 Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth).
Part XIVB of the Family Law Act 1975 (Cth) makes it an offence, except in very limited circumstances, to publish an account of proceedings that identify persons, associated persons, or witnesses involved in family law proceedings.
IT IS NOTED that publication of this judgment by this Court under the pseudonym Ferrucci & Kovak has been approved pursuant to subsection 114Q(2) of the Family Law Act 1975 (Cth).
EX-TEMPORE REASONS FOR JUDGMENT
SMITH J:
This matter is listed before me for final hearing in respect of both parenting and property.
The parties have, with the assistance of experienced legal practitioners, indicated to me that they propose to resolve the property dispute.
I have draft balance sheets from both parties, which are not substantially different. The reality is this is a very small property pool. In that context it is unnecessary to go into significant detail.
The principal assets are the sale proceeds of the former matrimonial home, held in a shared Commonwealth Bank Account, currently approximately $133,000, and the husband’s superannuation in the sum of approximately $194,000. That is an accessible pool of between $320,000 and $330,000.
There were prior interim property distributions, which would, in the usual course, be expected to be added back, the wife having received $223,637.33 and the husband, $40,000.
Each party has some home and contents of reasonably nominal value, in respect of which there will be no evidence.
There were also disputed loans, the evidence of which would be very difficult to establish.
The parties have in effect proposed that in respect of a net pool of approximately just over $320,000 they should divide it on the basis that there be:
(1)a superannuation splitting of 50%, which is approximately $97,000 each.
(2)In respect of the sale proceeds the wife should receive $50,000 and the husband the remainder which is approximately $83,000, subject to whatever the small interest difference may be.
There are consequential orders as to the retaining of other property as usual.
I am comfortably satisfied, having had an opportunity to read such material as has been filed, and noting there are some issues about the preparation of the property matter, and given the add-backs that would I think be required, that the orders sought are just and equitable.
I will make orders in accordance with the agreement reached between the parties, reduced to writing, and note that I am to be provided with a clean typescript.
The superannuation fund, which is Superannuation Fund 1, have not been provided with procedural fairness. Nevertheless, I think it is appropriate to make the orders. I cannot see any reason why they would have any issues with the substance. I note that occasionally issues arise with the formulation of splitting orders, but that can, almost invariably, be overcome by the reformulation of orders. If need be, the court can make slip rule or machinery amendment style orders to ensure that effect is given to this, very sensible, resolution of this property issue.
I make the agreed orders.
I certify that the preceding thirteen (13) numbered paragraphs are a true copy of the ex-tempore Reasons for Judgment of the Honourable Justice Smith. Associate:
Dated: 21 May 2024
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